Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and order dated 26-2-1989 passed by the 4th Additional Sessions Judge. Gaya, whereby and where under the accused-appellant No.1 Uma Singh has been convicted under Sec. 307 of the Indian Penal Code and the other three appellants were also convicted under Secs. 307/34 of the Indian Penal Code and all of them had been sentenced to undergo rigorous imprisonment for six years. 2. At the very outset, it should be mentioned that the accused-appellant No. 2 Sridhar Singh who was aged about, 80 years at the time of conviction died during the pendency of the appeal and an affidavit has been filed to that effect and hence the appeal has abated against accused-appellant No.2, Sridhar Singh. 3. The prosecution story in brief is that one Madhu Sudan Singh made a statement on 13-12-1982 at 7.30 p.m. in the State Dispensary at Kako alleging therein that on the previous date, i.e., on 12-12-1982 at 11 a.m. while he was returning home from his land just when he reached the Khalihan of accused appellant No.2 Sridhar Singh, he saw four persons in the Khalihan having arms in their hands. Accusedappellant. No.1, according to statement, had a rifle while Ambika had a gun and other two accused, Sridhar Singh and Ram Tabakkya Singh had pasuli in their hands. Uma Singh fired from his countrymade rifle which hit on his left knee. He fell down there and then the witnesses came to him for rescue and he was hospitalised. On the basis of that statement, a case was registered stating the contents of same as FIR and after investigation charge-sheet has been submitted under Secs. 307/324/34 of the Indian Penal code read with Sec. 27 of the Arms Act. 4. The defence plea is that there was no such occurrence as alleged for and on behalf of the prosecution. In total five witnesses have been examined including the doctor and the Investigating Officer. The injured has been examined as PW 3. PW 4 is the doctor and PW 5 is the Investigating Officer. For and on behalf of the defence two D.Ws. have been examined. According to them, one Suresh Singh and Surendra Singh while practising gun firing, a bullet came out which hit Madhusudan Singh. Practically, there was no intention to kill and these accused-persons have been falsely implicated. 5. PW 4 is the doctor and PW 5 is the Investigating Officer. For and on behalf of the defence two D.Ws. have been examined. According to them, one Suresh Singh and Surendra Singh while practising gun firing, a bullet came out which hit Madhusudan Singh. Practically, there was no intention to kill and these accused-persons have been falsely implicated. 5. FIR was lodged by the informant himself on the next date of occurrence and according to him, after receipt of bullet injury, the injures (he) became unconscious and after regaining sense he lodged an information in the State Dispensary. The medical examination and the evidence of the doctor supports that fact. So it was rightly held by the learned Sessions Judge that delay in lodging the FIR has got no effect in the case although the police station is situated about four kilometres away from the place of occurrence, as the FIR was lodged by the informant himself while being under treatment at the State Dispensary. Regarding the place of occurrence, much argument has been placed before this Court and also before the Trial Court from the side of the defence. It has been argued strenuously by the Senior Advocate for and on behalf of the accused-appellants that during the course of investigation the Investigating Officer found that the place of occurrence, as suggested from the side of the prosecution as potato field could not be found to be correct rather in the Khalihan of Rupam Singh wherefrom the defence suggested that the bullet came to hit Madhusudan Singh during the course of practising of gun-firing by. Stirendra Singh was found to be washed away by water and cow-dung suggesting that the place of occurrence even if felt have been attempted to be washed away and as such the Investigating Officer has formed an opinion that the accused persons might have been falsely implicated in the case as the occurrence has taken place elsewhere that the place as pointed out by the prosecution. But peculiarly enough although such opinion was formed by the Investigating Officer he had ultimately submitted charge-sheet against the accused-persons, Moreover, during the course of investigation also the prosecution side filed petition before the CJM that the Investigating Officer being influenced by the accused-persons was not properly investigating the case. But peculiarly enough although such opinion was formed by the Investigating Officer he had ultimately submitted charge-sheet against the accused-persons, Moreover, during the course of investigation also the prosecution side filed petition before the CJM that the Investigating Officer being influenced by the accused-persons was not properly investigating the case. On security of the evidence of the Investigating Officer regarding the place of occurrence, it could be found that potato field where the place of occurrence has been fixed by the prosecution side was having no raised up potato plants rather seeds were found sprouted only and in a portion of that potato field some earth has been found to be taken away. Thus, such taking away of earth can further be construed as an attempt from the side of the defence to conceal the blood marks and to shift the place of occurrence. The defence might have got earth near the darwaza of Rupam Singh washed away by water and cow-dung to shift the P.O. Washing of earth near the darwaza by cow-dung and water is regular phenomena of the residential places of the villagers that might not suggest some thing more and learned Court below has rightly held that although the defence side tried to shift the place of occurrence on the findings of the Investigating Officer they could not be able to do the same. 6. On this point another argument has been placed by the Senior Advocate appearing for and on behalf of the accused-appellants that the injury report shows scorching and burning of the surrounding place where the bullet entered suggesting that injury must have been caused by firing from rifle from a close range but as per FIR, the bullet was fired from the Khalihan of Sridhar Singh which is about 25 yards away from the alleged place of occurrence that is the potato field and if such is the place of occurrence then it cannot be said that the rifle was fired from a close range and according to the learned Counsel for the accused-appellants the defence case is more- probable than the prosecution case regarding the place of occurrence. Although in the FIR, it was stated that the injured Madhusudan Singh when reached near the Khalihan of Sridhar Singh he was surrounded by the accused-persons and then accused Uma Singh fired from his rifle, but during the course of evidence, it was specifically stated that the occurrence did never take place near the Khalihan of Sridhar Singh rather when the injured saw the accused-persons armed, he apprehended of the incident and then tried to flee away and then he was chased- and surrounded in the potato field and then, he was fired. Omission regarding that portion of the evidence before the Trial Court has been dealt with by the learned Sessions Judge in the impugned judgment and I am totally in agreement with the findings of the learned Sessions Judge in this regard. The injured was unconscious and he was operated on and after regaining of senses he gave the statement before the police from the bed of State Dispensary so his mental condition could be well imagined. Moreover, this much of evidence cannot be said to be of fatally affecting the prosecution case. The injured gave evidence giving vivid description of the occurrence and the same has been supported by other two witnesses PW Nos. 1 and 2. It is also in evidence that there was some inimical terms between the parties. The injured Madhusudan Singh is an accused in a Sessions case in which Sridhar Singh and others are the witnesses and as such, it is very natural that the injured would apprehend of fatal injury when he could see the accused-persons with armed waiting on Khalihan and as such he definitely tried to save his life by fleeing away. Thus, I find that the learned Sessions Judge has rightly held that omission in the FIR is of no vital affect rather the occurrence took place at the potato field itself as pointed out from the side of the prosecution. Regarding probability of the defence the matter will be dealt with after considering the prosecution case at proper stage. 7. For and on behalf of the prosecution as many as five witnesses have been examined. PW Nos. 1, 2 and 3 are the vital witnesses in the case. PW 3 is the injured Madhusudan Singh himself while PW Nos. 1 and 2 are the eyewitnesses. They are relations of the informant himself. 7. For and on behalf of the prosecution as many as five witnesses have been examined. PW Nos. 1, 2 and 3 are the vital witnesses in the case. PW 3 is the injured Madhusudan Singh himself while PW Nos. 1 and 2 are the eyewitnesses. They are relations of the informant himself. Although in the charge-sheet, there is an independent witnesses Matuk Singh who had, seen the occurrence but he had not been examined in the case. There was enmity between the parties. Although the enmity was tried to be concealed by PW 1 but the same has been admitted by the informant Madhusudan Singh and PW 2. The injured Madhusudan Singh is an accused in a Sessions case and some of the accused-persons are the witnesses in that Sessions case against Madhusudan Singh the factum of enmity cuts both ways. The witnesses have described the prosecution case in details. Although, they have been crossexamined at length but could not be dislodged. As a matter of fact, the injury on the persons of Madhusudan Singh it an admitted one. Only the way, how he has been injured has been differed. The partisan witness as per law and rule of evidence should not be discarded as a whole but their evidence is required to be scanned and scrutinized closely and carefully and that matter and principle of law has been considered by the learned Trial Court as is appearing from the impugned judgment itself. On independent scrutiny of the evidence of PW Nos. 1 and 2, who has been cited as the eye-witnesses to the occurrence, I find that they are truthful as there is not much contradiction in their evidence rather they had supported the injured Madhusudan Singh on all material points. Lengthy cross-examination could not dislodge them in any way whatsoever. The injured Madhusudan Singh has also depicted the story as has been stated by him in the FIR except that omission that seeing the accused persons armed, he tried to flee away but he surrounded by the accused-persons and Uma Singh dealt with rifle injury-. I have already stated that such omission has got no vital affect on the prosecution story. Rather this part of the evidence shows neutrality of the human conduct regarding the injured himself. I have already stated that such omission has got no vital affect on the prosecution story. Rather this part of the evidence shows neutrality of the human conduct regarding the injured himself. As there was enmity between the parties and when the injured Madhusudan Singh had seen the accusedpersons armed, definitely he would try to escape. Thus, I find that the prosecution could be able to prove their story very ably. 8. Regarding non-examination of Matuk Singh definitely the prosecution case becomes weak to some extent but due to that non-examination alone the evidence which has been brought on record cannot be disbelieved. 9. Regarding defence version although much stress has been given regarding its probability but I could not find on scrutiny of the defence evidence that the same is reliable rather the defence witnesses contradicted amongst themselves and such contradiction has been rightly observed by the learned Sessions Judge in the impugned judgment. If really the defence version was true then attempt ought to have been made from the side of the accused persons by citing Rupam Singh and Surendra Singh and their companions as their witnesses in the dock but they had not done so. The defence story is only a myth to escape the liability of the offence by the accused persons. Rightly the learned Court below has rejected the defence version. 10. Regarding the medical evidence, it is stated that the bullet which has been operated out from the thigh of the injured was not examined by ballistic expert to find out whether it was a rifle injury or not. From the cross-examination of the doctor, I could find that definitely the injury was caused by rifle on examination of the bullet itself. Such medical examination cannot be denied when the doctor said that he had got ballistic knowledge. Thus on this score also defence cannot get any benefit. 11. Now coming to the conviction portion, it is a definite case of the prosecution that only the accusedappellant Uma Singh had used his rifle to injure Madhusudan Singh. It was also the prosecution case that Sridhar Singh, i.e. appellant No. 2 had placed orders for attacking Madhusudan Singh. Regarding accused-appellant Nos. 3 and 4 although it was stated that they were also armed with weapons but they had never used their weapons. It was also the prosecution case that Sridhar Singh, i.e. appellant No. 2 had placed orders for attacking Madhusudan Singh. Regarding accused-appellant Nos. 3 and 4 although it was stated that they were also armed with weapons but they had never used their weapons. How far Sec. 34, IPC can rope them is the only question to be decided. The injured got his injury at thigh. Accused-appellant Nos. 3 and 4 were also armed with weapons. When they could find injury caused by accused-appellant Uma Singh did not cause death of Madhusudan Singh then their intention was to kill him then they should have also used their weapons. But that has not been done except a vague statement that they were also with the main assailant Uma Singh being armed with weapons. There is no other overt act attributed to them. There is no evidence regarding pre-plan or meeting of minds earlier. As accused-appellant No.2 Sridhar Singh had placed orders then he could definitely be roped under Sec. 34 of the Indian Penal Code but it has already been stated that the appeal has abated against him. There is inimical terms between Madhusudan Singh the injured and the accused-persons. He could have embroiled the prosecution story by involving accused appellant. Nos. 3 and 4 also but he had not done so, and it is not humanly believable that the injured person would fall upon others leaving aside his actual assailant. 12. Considering all these aspects, I find that the conviction imposed upon accused-appellant Nos. 3 and 4 by roping them under Sec. 34 of the Indian Penal Code is bad. In the result, the appeal is partly allowed. The conviction and sentence against accused-appellant No.1 Uma Singh is hereby upheld and confirmed. The appeal is abated against accused-appellant No.2 Sridhar Singh and the appeal is allowed hi respect of accused-appellant Nos. 3 and 4. The judgment of conviction and sentence against them is hereby set aside and they are relieved of their bail-bonds. Accused-appellant Uma Singh is hereby directed to surrender immediately before the Trial Court within four weeks next from this date to serve the remaining part of sentence. Accused appellant Nos. 3 and 4 are relieved of their bail-bonds. If accused-appellant No.1 Uma Singh does not surrender within the time-frame then the Trial Court shall take all coercive steps to bring him to book.